Russell v. Unum Life Insurance Company of America, 40 F.Supp.2d 747 (D.S.C. 1999) – decided March 30, 1999 – United States District Court for the District of South Carolina – Robert E. Hoskins

I represented Russell.  Russell is one of the more legally significant district court decisions I have obtained.  The Honorable Henry M. Herlong, Jr. was the Judge in Russell and he did an excellent job with the opinion.  Russell is important for two reasons (1. a “self-reported symptoms” limitation and 2. the court’s discussion of fibromyalgia).  In Russell, the plaintiff sought ERISA governed long term disability benefits.  Unum admitted that Russell was disabled, but asserted that after it paid her benefits for a year that she was not entitled to any further benefits because of a “self-reported symptoms” limitation.  The “self-reported symptoms” limitation was addressed by the court as follows:

“Russell’s condition does not fall under the “self-reported symptom” limitation, as defined by the Plan.  Under the Plan, a condition based on “self-reported symptoms” is one where:  “The manifestations of your condition which you tell your doctor, that are not verifiable using tests, procedures or clinical examinations, standardly accepted in the practice of medicine.”  (Pl.’s Mot. Summ. J. at 2; emphasis added.)  Russell’s condition does not fit within this definition because her claim is girded with a physician’s examination and diagnosis based on objective tests accepted in the medical community.  Russell’s physician, Dr. John Riley, attests that Russell suffers from fibromyalgia, a diagnosable condition.  In his affidavit, Dr. Riley states: 

Indeed, Ms. Russell does have noticeable changes on her MRI which clearly objectively demonstrate conditions which contribute to her problems.  Regarding her diagnosis of fibromyalgia, fibromyalgia by definition is not verified by objective medical tests such as MRIs or x-rays but fibromyalgia is diagnosed via the presence of ‘pressure points’.  Ms. Russell has demonstrated sensitivity in the relevant ‘pressure points’ and, therefore, to the extent that it can be verified by objective medical evidence, Ms. Russell’s diagnosis of fibromyalgia is supported by the presence of the ‘pressure points’.  Therefore, the degenerative joint disease and polyartholgia which is intimately tied to the fibromyalgia is clearly demonstrated by the MRI which was taken and the fibromyalgia is demonstrated [by] all of the objective evidence by which it can be demonstrated.

(Id. Ex. H2.)  Therefore, it is clear that Dr. Riley: (1) used several tests, procedures, and examinations to examine Russell; (2) recognized that fibromyalgia is diagnosed through the use of a standardly accepted “pressure point” test; and (3) applied Russell’s condition to the test to determine that she suffers from fibromyalgia.  As a result, Russell’s condition does not fall under the “self-reported symptom” limitation.” 

Russell suffered from fibromyalgia.  Unum contended that fibromyalgia cannot be verified via objective medical testing and that, therefore, its decision that Russell was subject to the “self-reported symptoms” limitation was not an abuse of discretion.  The district court disagreed, stating:

“The essence of UNUM’s argument is that fibromyalgia is not an objectively diagnosable disease.  See (Def.’s Cross-Mot. Summ. J. at 10.)  The courts disagree.  “Fibromyalgia is a type of muscular or soft-tissue rheumatism that affects principally muscles and their attachment to bones, but which is also commonly accompanied by fatigue, sleep disturbances, lack of concentration, changes in mood or thinking, anxiety and depression.”  Lang v. Long-term Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 796 (9th Cir. 1997) (citing The Arthritis Foundation, Fibromyalgia, Arthritis Foundation Pamphlet at 1, 5 (1992)).  Recognizing the ability to detect and diagnose the condition, several courts have awarded disability benefits under ERISA for fibromyalgia.  See e.g., Lang, 125 F.3d at 799; Godfrey v. BellSouth Telecomm., Inc., 89 F.3d 755, 759-60 (11th Cir. 1996).  The Godfrey court noted that “fibromyalgia can be severely disabling and can only be diagnosed by an examination of the patient.”  Godfrey, 89 F.3d at 758.  Hence, courts often affirm an administrator’s denial of benefits when that decision is supported by one or more independent medical examinations.  See e.g., Robinson v. Phoenix Home Life Mut. Ins. Co., 7 F.Supp.2d 623, 632-33 (D. Md. 1998) (denying benefits to fibromyalgia claimant based on two separate medical opinions); Bremer v. Hartford Life & Accident Ins. Co., 16 F.Supp.2d 1057, 1061-62 (D. Minn. 1997) (same).  Therefore, courts are aware that fibromyalgia is a diagnosable condition.  More importantly, the medical community also recognizes this fact. 

Physicians can look to objective factors to diagnose fibromyalgia. Dr. Riley points to several articles detailing the condition citing the basis of his “pressure point” test.  See (Pl.’s Mot. Summ. J. Ex. H2.)  This diagnostic test is not foreign to the medical profession.  The record includes several journal articles detailing the existence of fibromyalgia and the methods used to diagnose the disease.  See (Id.)  Using the “pressure point” test used in the medical community, as well as viewing Russell’s magnetic resonance image, Dr. Riley concluded that Russell suffers from fibromyalgia.  Rather than challenge Dr. Riley’s findings with its own medical examination, UNUM elected to have two registered nurses simply review Russell’s file.  See (Def.’s Cross-Mot. Summ. J. at 6, 9.)  Therefore, the record contains only one authoritative medical opinion - - Dr. Riley’s affidavit and supporting records.  UNUM’s decision to ignore Dr. Riley and, instead, base its decision on the cursory review of two nurses was not reasonable.  Accordingly, under the standard of review used in this case, the court finds that UNUM abused its discretion in denying LTD benefits to Russell.”  (Click here to view the full decision)